

ASSAULT ON SENATOR SUMNER. 


SPEECH 


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U. S. A 


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HON. WAKEEN WINSLOW 


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OF NORTH CAROLINA, 

DELIVERED IN THE HOUSE OF REPRESENTATIVES, JULY 11, 1856. 


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On the resolution reported by the select committee to in¬ 
vestigate the alleged assault upon Senator Sumner by 

Mr. Brooks,— 

Mr. WINSLOW said: 

Mr. Speaker: I have not heretofore intruded 
upon the attention oF the House, nor sought its 
indulgence. I have been content to listen and to 
learn rather than to aspire to speak and to impart 
information. 

If I break now the silence which I have hith¬ 
erto maintained, it is not with the vain hope that 
I can add anything to what has been said upon 
a subject now nearly exhausted, nor yet with the 
expectation that I shall influence the opinions of 
any honorable member upon this floor. But the 
question under discussion is one of moment, not 
so much from its applicability to the state of facts 
which have provoked the discussion, as from the 
abstract principles involved in the resolution—not 
so much from its present bearings, as from its 
future relations. It has been invested with an 
importance, however, in my judgment, quite 
unmerited and undeserved, arising out of the 
intensely-excited condition of the public mind, 
already unduly inflamed by the discussion of that 
great subject, the ceaseless agitation of which will 
in the end I fear bring in its train an Iliad of woes 
to our once happy and united people. I owe it, 
therefore, to myself—I feel that I owe it to the 
respectable constituency who have honored me 
with the high trust of representing their interests 
upon this exalted theater, to express my views 
upon this interesting question, and to disclose 
the reasons which shall control my suffrage. 

It is very gratifying to feel that, in the remarks 
which 1 propose to submit, neither duty nor the 
occasion demand of me that I should.advert to, 
or animadvert upon, the.details of the difficulty 
between the member from South Carolina and 
the Senator from Massachusetts, since, in the 
view I take of the subject, it will be wholly un¬ 
necessary to do so for the exposition of the prop¬ 
ositions I shall advance. 

It may not, however, be wholly foreign to the 
subject to say that one of the saddest exhibitions 


of the sectional excitement which undoubtedly 
exists is, that the passion of the moment tints 
with its hues, and colors with its dyes, every 
other subject, however remote in its relations or 
trivial in its consequences. Thus the press and 
the pulpit, and the forum of the North, pertina¬ 
ciously seek to expand a private fracas into a 
political conspiracy. A personal controversy, 
and naught else but a personal controversy, is 
ascribed in its origin to a settled design of all of 
one section against the rights and privileges of a 
single State; and yet, when the facts are devel¬ 
oped, it is nothing more than a personal contro¬ 
versy, however much it may be condemned in one 
section, lamented in another, and approved in' a 
third. It is no less remarkable that this sentiment 
is persisted in, while a committee of this House,, 
a majority of which is composed of gentlemen 
belonging to the dominant party here, and wKo' 
think politically with the Senator from Massa¬ 
chusetts, upon a careful investigation, having the 
power to send for persons and papers, have ig¬ 
nored all grounds of a political conspiracy, and 
have been wholly unable to fix a participation in 
tlie act upon any other member or person as 
principal or abettor. And the mad whirl of pas¬ 
sion in which the country is involved is illustrated 
by the absence of all that charity ©f judgment 
which, in a healthful condition of the public 
mind, would explore to find excuses in the frailty 
and weakness of our nature for acts which sober 
reason, in the abstract, might condemn. No al¬ 
lowance is made for an ardent, enthusiastic, and 
impulsive temperament, stung to the quick, hnd 
justly stung, by unprovoked assaults upon his 
kinsman, his constituent, and his country; 
wounded sorely upon whatwasdeemed—whether 
truly or otherwise is immaterial—a defamation 
of the time-honored Commonwealth whose fame 
and character was, in part, in his keeping. Do 
you wonder, sir, at the excitement.^ You and I, 
and the House, know full well the sensitiveness 
of the people of the old thirteen States upon the 
subject of the services of their ancestors in the 
days of trial, the days of the Revolution, when 












the times required men to act and not carpet 
knights to profess. These are but the indications 
of a state of feeling that fill the heart of the patriot 
with anxiety and solicitude for the future. 

For my part, sir, I seek never to detract from 
the character of any one of the sovereign con¬ 
federated States of this Union. Especially would 
I never indulge in any feeling of detraction with 
regard to the fair fame of any one of the old 
thirteen States who, shoulder to shoulder, went 
through the Revolution,and shared in the sorrows 
and the sufferings of that gloomy but glorious 
era. In this respect I endeavor to imitate the 
example of my own honored State. She embraces 
every opportunity to laud the noble deeds and 
praise the heroic actions of her sisters; she lets 
no occasion pass by unimproved in which she 
could celebrate their services and perpetuate their 
fame; while, silent as to her own great actions, 
she reposes upon the records of history, and sub¬ 
mits to the judgment of time, a tribunal whose 
decrees are irreversible, because they are just. 
She envies not any of her sisters their merited 
glory. She would not touch a laurel upon the 
brow of that State from whose soil shoots to 
heaven the granite shaft which tells the kindred 
stars of the fame of Bunker Hill, and marks the 
spot where Putnam fought and Warren fell. 
She would not wither a leaf of the laurels which 
twine so gracefully around the fair brow of Mas¬ 
sachusetts; long may they flourish there, green 
as the foliage of Carolina’s own eternal pines! 

It is not to be denied, sir, that the Union is in 
danger. Portentous clouds are lowering over our 
country, and ominous thunders are threatening 
the arrival of an approaching storm. It may not 
explode to-day, sir, nor to-morrow—this year nor 
the next; but the elements are warring, and the 
explosion must come sooner or later, unless the 
prayers of the good, and the wise, and the patri¬ 
otic, ascending on high to heaven, like so many 
moral electrics, may disarm the storm of its fury, | 
and propitiate the Divine wrath we have so justly i 
provoked. We stand upon the brink of an awful i 
precipice, and at a height so giddy that it re¬ 
quires all our presence of mind to maintain our 
footing. Nor have we been unwarned of our 
danger. Years ago, in the sunny fields of that 
South which he loved so well, and where all his 
richest affections clustered, there lived a states¬ 
man—now, alas ! gathered to his fathers—whose 
eagle eye detected in the political horizon that 
cloud, then no bigger than a man’s hand, yet 
destined to increase in volume, and perhaps ere 
long to explode its fury. In vain did Calhoun 
raise his warning voice. It fell upon ears as cold 
and heedless as those to whom Cassandra proph¬ 
esied within the fated w'alls of Troy. Sir, our 
Government is one of opinion, not of force. 
The pillars which support the governmental 
fabric find their bases in the affections of a free 
people. Alienate those affections, and the edifice 
must totter and fall. Sir, that alienation has 
begun, and must be checked, else the historian 
lives whose pen will record the downfall of the 
Republic. For my part, if I can do nothing to 
soothe, I shall do nothing to irritate. I shall 
forbear, until forbearance even shall seem to cease 


to be a virtue; and if the crisis must come, I shall 
endeavor to do my duty to the whole country, 
and especially to that section where my fortunes 
have fallen, and where my destiny is fixed. 

I know, sir, there is a skepticism in the minds 
of northern gentlemen upon this subject. 1 am 
aware that the opinion is maintained—I have 
heard it avowed upon this floor—that in no case 
could the South be forced out of the Union; in 
the classic language of the braggart, that she can¬ 
not be “ kicked out;” and all intimations that 
the discussions of particularsubjects, or the enact¬ 
ment of particular measures, may have a tendency 
to weaken the bonds of the Union, and sever our 
political ties, are deemed threats and menaces. Sir, 
I deal in no such threats or menaces. I disclaim 
any such purpose. I speak in sorreew, not in 
anger. I have too much respect for the North— 
too much real regard for that great people—for 
they are indeed a great people—to suppose that 
they could be driven from their propriety by any 
such base seiitiment as fear; and if they could, I 
would scorn to extort from their fears what I had 
a right to expect from their sense of justice. 

Sir, we ought to save this Union. The loftiest 
motives press upon us; the noblest incentives 
influence us; our reverence for our ancestors 
demands it; our own future fame invokes it. 
Throughout the civilized w'orld, strong nerves 
tremble, and stout hearts quake, for the final re¬ 
sult of this last experiment of man’s capacity for 
self-government. Age after age, in the dim vista 
of the shadowy future,gaze at us with anxiety and 
solicitude. If the Union be worth preserving, it is 
worth taking pains to preserve. I profess no idol¬ 
atrous love for it; I cherish it for the good it has 
done, and for the good it may yet do. It has given 
us peace at home, unexampled prosperity, and a 
name among the nations, ^t has gained us re¬ 
spect abroad, and assured us security from ag¬ 
gression. I have never yielded to that sentiment 
springing from mawkish sensibility, that we 
should not calculate it^^ value. I think we can 
never too often go into the reckoning; it will 
bear investigation. I was much impressed with 
some statistics with regard to my own honored 
State and the State of Massachusetts, which met 
my eye in the columns of an able political jour¬ 
nal, showing the great comparative advantages 
to both of the Union of these States. I will read 
them. The Richmond Enquirer says of Massa¬ 
chusetts and North Carolina: 

“We think every sensible man in Massaclmsetts, after 
comparing t!ie census of his own State with that of IVorth 
Carolina, whether he be actuated by selfish policy or en¬ 
larged philanthropy, will arise from the comparison a warm 
friend of the Union as it is. The statistics which we shall 
cite might, of themselves, induce the belief that the Bay 
State was only productive of criminals and paupers. But 
it is well known that, despite her fanaticism, she is wealthy, 
enlightened, industrious, and energetic. Her commerce 
and manufacthres supply her witli the products of agricul¬ 
ture. Disunion would crippld those resources, and proba¬ 
bly expel her industry, skill, and capital to better marketJ 
and more congenial climes. The population of Massachu- 
.setts in 1850 was (in round numbers) 1,000,000, that of 
North Carolina 870,000. Massachusetts produced 31,000 
bushels of wheat, 2,345,000 bushels of Indian corn, and 
3,585,000 bushels of potatoes, 81,000 hogs, 42,000 horses 
and mules, and 260,000 cattle. The productions of North 
Carolina, iir proportion to population, .were about ten times 










produced 2,130,000 bushels of wheat, 
-7,000,000 biisliels of Indian corn, 5,700,000 bushels of pota¬ 
toes, 1,800,000 hojTs, 17*1,400 horses and mules, and 693,000 
cattle. What a field she exhibits for Massachusetts com¬ 
merce and utanufactures ! Vet she would fare better in 
case of a disunion than Massachusetts, for she produces 
all the necessaries of life, and might produce its luxuries 
within herself. 

“The statistics of crime and pauperism exhibit quite as 
startling a difl'erence in favor of North Carolina, and prove 
that she can and does attend to the moral and physical con¬ 
dition of her people, and needs no foreign prompting or 
interference. Before quoting those statistics, we would 
remark, that fuel, so dear and so much needed in Massa¬ 
chusetts, is at every man’s door in North Carolina, without 
money and without price—for there are few towns in tliat 
State. In Mc'issachusetts, in 1850, there were 15,700 pau¬ 
pers; in North Carolina, 1,900. In Massacluisetts, crim¬ 
inals convicted in 18.50, 7,000; in North Carolina, 600. In 
prisons, in Massachusetts, 1,000 ; in North Carolina, 44. In 
Jails in Massachusetts, 1,000; in North Carolina, 34. In 
penitentiariesin Massachusetts,431 ; in North ("arolina, 14. 
Odd Fellows’ charities in Massachusetts, $264,000; in 
North Carolina, $10,000. 

“ We think that these statistics deserve the serious study 
of every Christian, patriot, and philanthropist in the Union.” 

Sir, I cannot help thinking that, if the energies 
of our politicians were de'woted to the compila¬ 
tions of statistics like these, in good Anglo-Saxon, 
and to their circulation in New England among 
that class of people who'have everything to lose 
and nothing to gain by disunion, who will have 
to bear the burden^ without sharing in the hon¬ 
ors of a new Confederacy, it would be much 
more patriotic and profitable than the translation 
into rich Gerntan of speeches upon Kansas, re¬ 
flecting upon the institutions of the South, and 
their circulation in the prairie States of the North¬ 
west. 

Sir, the course of the early part of this debate 
has provoked me to wander from the subject. 1 
was about to apologize, when I recollected that 
adherence to the subject under consideration is 
the exception, not the rule, in this House. I 
pass now to the merits of tliis resolution, pro¬ 
posing to discuss it in the cold and calm way in 
which alone legal propositions ought to be dis¬ 
cussed. I have examined this question with 
carei and have come to conclusions contrary to 
preconceived opinions. I think I have examined 
it without bias. I sit here as a judge. I have 
endeavored to know no political relations be¬ 
tween myself and the member from South Car¬ 
olina. 

“ Tros ve Tyrius rnihi nullo discrimine agitur.” 

I propose to show, sir, that this House has 
but a limited poM'^er over its members—a power 
to punish them for disorderly behavior in open 
session, or in some matter so intimately con¬ 
nected with its business, as by fair intendment 
may be said to be committed in open session, 
and that the punishment may extend to expul¬ 
sion, if a majority of two thirds of the whole 
House concur, that, for no other offense nor 
other cause can a member be expelled; that the 
House, while it has Jurisdiction over contempt, 
according to its strict legal definition, has no 
jurisdiction over what are called contempts in 
common parlance, because such jurisdiction has 
not been conferred by the Constitution, nor by 
any law of Congress under the authority of its 
constitution. 


The resolution proposes to expel the member 
from South Carolina. In my opinion, we have 
no authority to expel the member from South 
Carolina for the causes assigned. The power of 
punishment which this House can exercise em¬ 
braces two classes of subjects—its own members, 
and strangers to its body. It derives its jurisdic¬ 
tion over the former by positive law, and over 
the latter, if it have any at all, which is denied 
by a minority of the committee, in the absence 
of a law of Congress, by implication only. Its 
power over its own members is set out in the 
second section of the third article of the Consti¬ 
tution: 

“ Each House may determine the rules of its proceeding, 
punish its members for disorderly behavior, and, with the 
concurrence of two thirds, expel a member.” 

It is needless to inquire whether it would have 
had this authority independently of the Consti¬ 
tution, and whether its insertion there was but 
an affirmation of the necessary rights and privi¬ 
leges inherent in its nature, and essential to its 
preservation. It is inserted there, and its inser¬ 
tion is an exclu.sion of all other powers. It covers 
the whole authority, and this whether derived 
solely from the Constitution, or whether it would 
have existed independently of it. The disorderly 
behavior which it has the ability to punish, when 
committed by its members, is an act of behavior 
committed in open session, or in some wise so 
connected with its session and business as to 
amount by fair intendment to a committal in open 
session. This must be so exvi termini. The act 
must be one of misbehavior, and it must be disor¬ 
derly, subversive of the rules of the House, and 
contrary to the course of its proceeding. If it be 
extended to disorderly behavior at any other 
time and in any other place, it will be a grant of 
power liable to the most monstrous abuses, and 
altogether most unwisely delivered. I do not 
know that this has been questioned. In the text- 
writers which have fallen under my observation, 
it has been conceded. 

Rawle says, (Rawle on the Constitution, 47:) 

“It cannot be doubted that misbehavior out of the walls 
of the House, or within the walls when the House is not 
in session, does not fall within the meaning Qf the Consti¬ 
tution.” 

And Mr. Justice Story, (Story on the Consti- 
tion, 581,) declining to give an opinion himself, 
quotes Rawle, if not with approbation, at least 
without dissent; and he observes,,in reference to 
Rawle’s opinion, that expulsion may be inflicted 
for criminal conduct committed in any place. 

“ Itmay be thoughtdiflicult todraw aclearline of distinc¬ 
tion between the right to inflict the punishment of expiil- 
.sion and any other punishment upon a member founded on 
the time, place, and nature of the offense.” 

If disorderly behavior elsewhere than in open 
session is to be looked to and regarded, where 
will you bound your inquiry, and what limit 
will you place to your investigation } Disorderly 
behavior—what con.stitutes it.i* By what stand¬ 
ard of ethics or of morals will you measure it? 
By the customs and codes of which of the thirty- 
one confederated States ? Will you adjudge po¬ 
lygamy to be misbehavior, contrary to the code 
of Utah? Will you deem a moderate indul- 







4 


—.-. 

gence in intoxicating drinks to be misbehavior, 
according to the code of Maine ? Committed 
when? After the member’s election, and before 
his qualification—during the session or during the 
recess ? Committed where? Here in the Capitol, 
on the avenue, or in the suburra of tlie metrop¬ 
olis, in the District, in any part of the Republic, 
or abroad? Grant the proposition, and you 
plunge into a sea of uncertainty, and assume a 
jurisdiction illimitable as to time and space, and 
undefined and undefinable as to its objects. 

And as the power to punish a member gen¬ 
erally is confined to cases of disorderly behavior 
committed in open session, so I think is, and 
ought to be, the power of expulsion. It is 
said that the right to expel is an open right 
and an independent grant of power, for causes 
other than disorderly behavior within the walls 
of the House in open session. I do not yield 
to the position. It is not to be found elsewhere 
in the Constitution, and is found there coupled 
with the causes for which punishment may be 
inflicted. I believe it depends upon the same 
offenses. Its insertion in the Constitution is 
meant to restrict the punishment. The House 
has the authority to punish for disorderly beha¬ 
vior committed in open session; but if that pun¬ 
ishment is pushed to expulsion, it must be by the 
concurrence of two thirds of the members. The 
expulsion of a member is, at any time and for any 
cause, a delicate matter. He is the representative 
of the freemen of his district, chosen of their free 
choice, according to the forms of law and the 
usages of the Constitution. His expulsion affects 
the constituent, loses its individual character, and 
becomes a matter between the House and the ap¬ 
pointing power. It will not do to say the House 
can exercise this right for mere caprice. It may 
have the power —the mere brute force —but not th^ 
authority. Poioer is distinct from authority. Povwr 
rests sometimes upon usurpation. Jiuthority is 
based upon the unbending rules of law, and the 
immutable principles of justice. Such a right 
must not rest upon implication, nor upon con¬ 
struction only; nor yet upon the precedents of 
privilege which have from time to time obtained 
in the Commons House of the British Parliament. 
If the authority exists, it should flow from un¬ 
equivocal grant, else the rights of a minority 
would be insecure, and themselves defenseless. 

If it be conceded that the power to punish a 
member for disorderly behavior is confined to 
acts of disorderly behavior committed in open 
session, and if it be insisted that expulsion may 
be awarded for any offense whatsoever, then there 
is this strange anomaly, that, for a lenient offense 

■ elsewhere than in open session, tlie grievous pun¬ 
ishment of expulsion must be inflicted; while the 
same offense, aggravated by being committed in 

1 open session in violation of the rules of order 
and of decorum, may be passed over with censure 

■ merely. That is to say, the lenient fault sub¬ 
jects to the graver punishment, and if not to that, 
to none other; while the graver offense may only 

i iaour the milder punishment. And this other 

. anomaly exists, that the framers of the Consti¬ 
tution zealously guarded the authority of the 

.iJoiLse to award light and lenient punishments, 


by a strict definition of the offenses which would 
subject to them, while they left the question of 
the grievous punishment of expulsion an open 
one for any offense whatsoever. 

But in every case where this power of expul¬ 
sion is contended for, it is based upon necessity, 
and urged and supported upon the ground that 
this House ought to have the right to expel its 
members for criminal misconduct affecting char¬ 
acter, and to purge itself of unfit associates. If 
this be so, it may again be pertinently asked, by 
what standard of ethics will you judge character ? 
In some sections of the country the resort to pri¬ 
vate combat upon the point of honor is deemed a 
legitimate mode of avenging insult and redressing 
injury. In other sections such a resort is forced 
by public opinion, and the failure to demand re¬ 
dress, and the refusal to give such satisfaction, 
would subject the recusant to the greatest of all 
punishments, the moral cross, social degradation. 
In still other sections the duel is looked upon as 
the relic of a savage and barbarous age, and would 
subject the offender to a stern and unforgiving 
condemnation. The act in one case, and the 
refusal in the other, would be considered alike 
dishonorable. In some sections of the country 
citizens ofthe South, holding slaves, are denounced 
as man-stealers and larceners, and branded with 
opprobrious epithets. The particular institutions 
of a particular section of the country are declared 
to be immoral, dishonest, and unchristian, at war 
with divine justice, and contrary to the precepts 
of the religion which we profess; and he who 
sanctions slavery is considered deeply dyed in 
guilt. Establish this doctrine, and let the party 
calling themselves radical Abolitionists obtain 
power in times like these, when the madness of 
party foams at the mouth, and frenzied fanaticism 
shakes its disheveled locks, and I would not give 
a pin’s purchase for the tenure by which any 
slaveholder will maintain his seat here. 

But it may be said that the power of expulsion 
ought to be exercised in all those cases where,by 
the code of morals which obtain among all people 
of civilization, the inember will be clearly an unfit 
associate for his fellow's. The suggestion is 
plausible, but deceptive. So long as the member 
performs his duty here, he violates no rule of 
order or decorum, and submits himself to the right 
rule and just authority of the House, what au¬ 
thority have you to impugn the judgment of his 
constituents,interpose between him and them,and 
make yourselves the arbiters? You are indeed 
the judges of the qualifications of your members, 
but not of their moral qualities. 

If the House suffer inconvenience for the want 
of this power, and if there be those among you 
who, from the dissoluteness of their morals, and 
leprousness of their characters, are unfit asso¬ 
ciates, the evil may be tolerated, since the remedy 
is in the hands of the people, at the ballot-boxes, 
at oft-recurring intervals; and as regards expul¬ 
sion for the sake of purgation, it is a remedy 
almost unmeaning and unavailing, since there is 
nothing to prevent the constituent body from re¬ 
turning the member, and so, totiesquoties,Q.s often 
as he is expelled. Grant it to its full extent, and 
it is, as has been remarked, a power of ostracism 











5 


by which an obnoxious member may be removed 
from his seat, who dare oppose a favorite measure. 

I am aware that a precedent may be found in 
the action of the Senate, upon which to found 
an opposite doctrine from that which I suggest. 

A Senator was expelled in 1796, for what may be 
called treasonable practices, by an almost unani¬ 
mous vote. The question of the power to expel 
was not considered or debated, and there were 
articles of impeachment found in this House pend¬ 
ing against him, resting on incontrovertible proof. 
Perhaps the question of power did not occur to 
the Senate; for, at the subsequent session, when 
the impeachment came on to be tried, fertile first 
time the doubt occurred whether a Senator, not 
being a civil officer, could be impeached; and that 
being determined in the negative, the impeach¬ 
ment fell. Besides this, I know no other prece¬ 
dent; but my researches have been limited. I 
cannot; however, yield a constitutional difficulty j 
upon a single precedent, unsupported by argument j 
or reasoning. | 

In another case, (that of Humphrey Mai'shall 
in 1796,) the Senate declined to try him on 
charges preferred by the Governor and Repre¬ 
sentatives of Kentucky, on the ground of want 
of jurisdiction, although Mr. Marshall earnestly 
sought a trial, and contended that his consent 
would confer jurisdiction. The Senate refused, 
on the substantial ground that, for a crime, no one 
could constitutionally be held to answer but by 
indictment, or presentment, nor to answer any- j 
where but before an impartial jury of the State j 
where it was committed, except by impeachment, i 
And it ought to be so. The courts of the country 
are the proper tribunals to try criminal miscon¬ 
duct. They proceed according to the course of 
the common law; they confront the accused with 
the witness; the accused is present when judg¬ 
ment is pronounced; there is an appeal from their 
decision, and the judges are liable to impeach¬ 
ment for corruption. With you it is altogether 
different. Your judgment is irreversible—there is 
no appeal from it; nor are you answerable for 
misconduct, nor do you allow the accused to be 
present at the judgment. 

This member has violated no rule of this 
House, nor any of its privileges. He has not 
been guilty of disorderly behavior in open ses¬ 
sion, nor has he done any act of criminal conduct 
involving character, which makes him an unfit 
associate, nor have you the power by any posi¬ 
tive law to expel him. Has he committed any 
breach of the privilege of the Senate, for which, 
if that body had jurisdiction, he would be ex¬ 
pelled? And can you for that reason interfere ? 
This brings us to the consideration of the second 
branch of the argument. 

It is said that parliamentary bodies have an : 
inherent right to go any and every act, and pro¬ 
vide any and every measure, necessary to their 
safety and preservation, and to the maintenance 
of their honor and dignity, and that this doctrine 
has been supported by the adjudication of the 
Supreme Court, in Anderson as. Dunn, (6 Whea¬ 
ton,) in a very clear and logical opinion delivered 
by Mr. Justice Johnson, of South Carolina. To 
a limited extent 1 subscribe to the doctrine. I 


believe this House has the rigfft to protect itself 
where no other means of protection lie open to 
it, and this by inherent right. I differ with the 
minority of the committee, if I understand them 
to contend that the House cannot punish acts of 
disorder by strangers to their body, committed 
in open session; and that to make such act an 
offense. Congress must have passed a law defining 
contempts, and affixing punishment, and that. 
Congress having failed to do so, this House is 
powerless to act, ex re nata. I do not think the 
House would be sufficiently protected in this 
way. Contempts are so protean in shape, and 
so tenuous in substance, as to be incapable of 
being grasped in a strict legal definition. I do 
not think thewitof man could devise a law which 
would cover every supposable case of contempt. 

It will be seen, however, upon examination, 
that the difference between myself and the minor¬ 
ity is but slight, and perhaps upon investigation 
it might vanish altogether. But I am frank to 
say, that 1 concur most cordially in the general 
view of this much misunderstood question of 
privilege, as expressed in the able report of my 
distinguished friend from Georgia, [Mr. Cobb,] 
a report which does like credit to his head ana 
his heart. 

The contempts which 1 think this House has 
the right to punish are legal, technical contempts, 
and not contempts in common parlance—not mere 
indignities to the body or its members. I do not 
j think it a contempt of this House to speak dis- 
i respectfully of a member; to indulge in harsh 
i strictures in the press upon its proceedings; to 
send a challenge to a member; to assault a member 
upon the avenue, or in this Chamber, when the 
House is not sitting. Technically, a contempt 
in law means an obstruction of process—an inter¬ 
ference in the business of the House, court, or 
tribunal, which impedes and hinders its progres¬ 
sion; and the nature, genius, and spirit of our 
institutions require that this power even should be 
narrowed down to the smallest possible compass. 
Nor has the House the right, nor ought it to 
have, to interfere in a summary way in any case 
where the courts of law could give ample redress 
and protection. 

We are not to understand the word “ punish,” 
in the Constitution, in its broad sense. It is not 
the same power which is delegated to the courts. 
Courts punish in the full signification of the term. 
They do it for the double purpose of inflicting 
pains and penalties upon an offender, and deter¬ 
ring evil-doers by the example. The power of 
the House to punish is not that power. If it 
were, what limit could you assign to it? Either 
House could fine or imprison at pleasure, and, 
imitating the British Commons, inflict death. It 
is well settled now, both here and there, that you 
can inflict no punishment but imprisonment, and 
that only during your session. No, sir, this 
power to punish is but the power to remove ob¬ 
structions from the path of your progression. 
Beyond this, the courts of the country act, which 
deal out justice, like the dew of Heaven, to all 
alike—to the proudest Senator, and the humble.st 
of his constituents. 

These views are not opposed to Anderson vs. 
















6 


Dunn. The attempt there was to bribe the chair¬ 
man of the Committee on Claims. The case 
excited much interest at the time. I remember, 
when a boy, to have read a ballad on the subject; 
the refrain ran somewhat in this way: 

“ John Anderson, my jo, John, 

How co\il(l you be so rasli 
As to try to bribe a congressman. 

And not produce the cash.”’ [Laughter.] 

The attempt was certainly an attempt to im¬ 
pede the business of the House. The disturb¬ 
ance of a committee, sitting under its authority, 
is a disturbance of the House itself. All the 
privileges of a member attach to him as well in 
committee as in the House; and, as was remarked 
by Mr. Justice Johnson, speaking of the record, 
in the Supreme Court, sitting as a court of 
errors, nonconstat, but that the offense was com¬ 
mitted in open session. Besides, the court could 
have given no relief. I do not think this power is 
derived from what is called parliamentary law, nor 
does it rest at all upon the precedents of the Com¬ 
mons’ House of the British Parliament. Prece¬ 
dents of the Commons of England could be cited 
to sustain any and every act of tyranny the most 
monstrous and absurd. Instances nave been 
adduced by the minority of the committee in 
their report, and the list might have been indefi¬ 
nitely extended. 

But the power I claim for the House is the 
power of self-defense—the right which every one 
has to protect himself when the law cannot cover 
him with its shield. If one threatens, you have 
no right to assault him; but if he assail you, you 
are justified by law in repelling the attack. If 
he enter your dwelling against your will, you 
have a right to use the necessary force to expel 
him. This summary jurisdiction, which the law 
sanctions, springs from the fact that the law can¬ 
not itself protect you fully in the emergency. 
This House has it, as you have it. Why do you 
wish to hedge yourselves about with lordly priv¬ 
ileges which you deny to others.^ Has your 
Executive any other privilege than the humblest 
citizen ? Do you make, by law, his person sacred, 
or surround him with pretorian cohorts? It is 
as necessary for the peace and happiness of the 
country that he should be protected, as that the 
members of this or the other House of Congress 
should be. 

Sir, the best protection this House can seek is 
the protection of a quiet conscience. The con¬ 
sciousness that it has done, and the determina¬ 
tion that it will do, nothing to injure anyone, 
save in the strict line of duty; the cultivation 
of our habitual regard for the feelings and char¬ 
acter of others; the administration of its high 
trust with dignity and lofty breeding; the dispens¬ 
ation of justice with an equal hand to every sec¬ 
tion of the Union—let it so act, and it will be 
thrice armed. Under this reasoning, the mem¬ 
ber from South Carolina could not be held to 
answer here. He has not been guilty of any 
contempt of the Senate; and for the act that he has 
done he is answerable in a court of law, where, 
in point of fact, the case has undergone investi¬ 
gation. The courts can give complete redress, 


and for that reason this House ought not to as¬ 
sume a jurisdiction. 

But, in truth, there has been no breach of the 
privilege of the Senate. The right of exemption 
from arrest, and from being questioned elsewhere 
for words spoken in debate, are the personal priv¬ 
ileges of the individual member, and not of the 
body collectively. 

This was held in Massachusetts in 1808, in 
Coffin vs. Coffin, (4 Mass. Rep., 1.) The deci¬ 
sion was made by the supreme court, then a 
court of the highest judicial reputation in th« 
Union. The opinion was delivered by Parsons, 
“ clarum et venei'obile nomen,”in Massachusetts’s 
palmiest days. The defendant, a member of the 
Massachusetts Legislature, was sued for slander. 
The slander consisted in charges made in con¬ 
versation with a fellow-member, pending a res¬ 
olution, in which the plaintiff, not a member, was 
concerned. It was urged that for everything said 
by a member during the sitting of the House he 
could not be questioned elsewhere. Besides, the 
House of Representatives of Massachusetts, by 
resolution, had declared it was the privilege of 
the member, and that he could not be, and ought 
not to be, questioned for it. But the court said 
“they were competent to examine into this ques¬ 
tion of privilege;'and they held that, when the 
defendant spoke the defamatory words in conver¬ 
sation, he was not in the discharge of his duty 
as a Representative, but was acting as a private 
citizen, and was liable to be questioned for them. 

These privileges were conferred upon the rep¬ 
resentative to shield him against executive en¬ 
croachment especially. From the time of Henry 
III., when the Commons of England first sat aa 
a distinct House of Parliament, it was, through a 
succession of yeai'S, engaged in alarming conflicts 
with the Crown to maintain itself. Members were 
arrested in their seats, and committed to the 
Tower; others were attainted for words spoken 
in debate. It was to secure the personal inde¬ 
pendence of the member, and to insure that he 
who had to address the public might speak freely, 
that the Commons struggled for and obtained 
these guarantees. For much the same reasons 
were these provisions inserted in our Constitu¬ 
tion. It was to shield the member from being 
sued for slander; not to guarantee that he should 
not be knocked down by any one whom he 
insulted. No one had a right to assault him, 
under the laws of the country, whatever he might 
have said; and it was surely not requisite to insert, 
for such protection, such an absurd declaration 
in the Constitution. If the construction con¬ 
tended for be pushed so far, let us substitute the 
value of the words for the expression as it stands, 
and then the paragraph would read: “No mem¬ 
ber shall be questioned, nor knocked down, for 
words spoken in debate.” Why insert such a 
provision in the Constitution? No necessity 
existed for it. 

But while a member is privileged to say any¬ 
thing in debate, to utter whatever he chooses, and 
cannot be, and ought not to be, questioned for it 
elsewhere, the privilege cannot be safely pushed 
further. Bad men are always to be found who 
use the shelter of their situation to utter and pub- 






lish slanders. They must, of necessity, be per¬ 
mitted to go unwhipped of justice. They create 
sores which can never be healed, and cause 
wounds which time will not cicatrize. We can¬ 
not avoid this. But shall we, the guardians of 
the rights of the people, permit these slanders to 
be published on the wings of the wind, under our 
authority, and say the perpetrator shall not be 
held to answer criminally ^ It is not so held by 
the courts of that country from which the princi¬ 
ples of our jurisprudence are derived, and which, 
if not less free than ours, are certainly more arbi¬ 
trary. 

A member of the Commons of England was held 
to answer for libel under the following circum¬ 
stances. A report of a speech made by him was 
published, without his authority, in a newspaper. 
The report was incorrect, and he undertook to 
furnish for publication a corrected report. This 
latter paper was held to be libelous. In deliver¬ 
ing the opinion of the court. Lord Ellenborough 
observes t 

“ A member of Parliament bas spoken what he thought 
material, and what he was at liberty to speak in his charac¬ 
ter as a member of that House. 

“ So far he. was privileged ; but he has not stopped there, 
but, unauthorized by the House, has chosen to publish an 
account of that speech in what he was pleased to call a 
more corrected form ; and in that publication has thrown 
out reflections injurious to the character of an individual. 
Has he a right to reiterate these reflections to the public, and 
to address them as an oratio ad populHm,m order to explain 
his conduct to his constituents.^ There is no case in prac¬ 
tice, nor any proposition laid down by the best text-writers, 
to support such a proposition.” 

And Leblanc, Judge, said: 

“ As to the right of a member of Parliament to speak in 
Parliament wdiat is defamatory to the character of another, 
that sitting in a court of justice we were not at liberty to 
inquire into that, because every member had liberty of 
speech in Parliament; but when he published hb speech to 
tlie world it then became the subject of common law juris¬ 
diction; and the circumstance of its being accurate, or in¬ 
tended to correct a misrepresentation, would not the less 
make him amenable to the common law in respect to the 
publication.” 

And Bayley, Judge, observes: 

“The case is without difficulty. A member of Parlia¬ 
ment has undoubtedly the privilege, for the purpose of pro¬ 
ducing parliamentary effect, to speak in Parliament boldly 
and clearly what he thinks conducive to that end. He may, 
even for that purpose, if he think it right, cast imputations 
in Parliament against the character of.any individual, and 
still he may be protected. But if he is to be at liberty to 
circulate tho.se imputations elsewhere, the evil would be 
very extensive. No member, therefore, is at liberty to do 
so.”—(Rex vs. Creevy, 1 M. and S., 273.) 

Let me call your attention to another case, 
(Rex vs. Lord Abingdon, 1 Esp. N. P. C., 226,) 
an information against Lord Abingdon, for a 
libel contained in a paragraph in the public news¬ 
papers, stated to be part of a speech delivered in 
the House of Lords. Lord Abingdon urged that, 
as the law and custom of Parliament allowed a 
member to state in the House any facts or mat¬ 
ters, however they might reflect on an individual, 
or charge him with any crimes or offenses what¬ 
soever, and such was dispunishable by the law 
of Parliament, he from thence contended that he 
had a right to print what he had a right to de¬ 
liver, without punishment or anifhadversion. 

Lord Kenyon said: 

“As to the words in question, had they been spoken in 


the House of Lord.-, and confined to its walls, that court 
would have no jurisdiction to call his lordship before them 
to answer for them as an offense; but that, in the present 
case, the offense was the publication under his authority 
and sanction, and at bis expense.” 

A case still stronger is that of Stockdale rs. 
Hansard. Hansard had published and sold by 
express authority, and under the direction of the 
Commons, certain documents, in which were con¬ 
tained reflections against the plaintiff libelous in 
their character, set out in the report of their com¬ 
mittees. It was much urged by the Attorney 
General, expressly employed by the Commons to 
defend an action for libel brought by Stockdale 
against him, that it was the privilege of the Com¬ 
mons to publish and authorize the sale of their 
documents and proceedings, and that the de¬ 
fendant, acting under the authority of the Com¬ 
mons House, could not be questioned for his act; 
but Lord Denman, and a full court, thought 
otherwise. It was admitted that the Commons 
had the right of publication, but it was a right 
restricted by the common law, and it was elo¬ 
quently asked— 

“ What advantage derived from publicity can be equal to 
the maintenance of the principle, that even to the repre¬ 
sentatives of the people, the most powerful body in the 
nation, the calumny of individuals is forbidden.^ What 
benefit can countervail the evil of a general understanding 
that any man’s character is at the mercy of that body, and 
that hy the law, not merely by the force of overbearing 
power, but by the rule of English law, for the sake of public 
expediency, he may be slandered without redress? The 
warmest advocate for this extended privilege is soberly 
asked, whether any benefit in a land, all the institutions of 
which seek the genial sunshine of public opinion, and must 
litiiguish without it, can make up for the injury resulting 
from this—that it should be capable of being said with truth, 
the House of Commons has become a trader in books, and 
claims as privilege a legal monopoly in slander?” 

And Lord Denman and his associates had the 
firmness and independence to dispense the law, 
not the law of Parliament, that engine of tyranny, 
but the benign doctrine of the common law, in 
the face of the power of the Commons House of 
Parliament. 

Apply, sir, these doctrines to the case under 
discussion. The Senator from Massachusetts 
had delivered a speech in his place, under shelter 
of his privilege. I express no opinion of it my¬ 
self. It was characterised by a venerable states¬ 
man, the distinguished* honored and beloved Sen¬ 
ator from Michigan, [Mr. Cass,] as the most 
unpatriotic and anti-American speech ever deliv¬ 
ered in the Senate of the United States. It has 
been condemned by all the moderate men of all 
parties in the Senate, in this House, and through¬ 
out the country. The moderate and conserva¬ 
tive portions of the press of the North either 
condemn it, or refuse to applaud it. It dealt in 
wholesale vituperation of Senators, States, and 
sections. According to the just judgment of the 
patriotic men of the Union, its delivery was un¬ 
called for and indefensible. It was prepared 
with care, and deliberately delivered. It was 
printed before delivery, and published afterwards. 
This printing and publication threw the Senator 
out of the protection of his privilege. If the 
strictures on the speech be just, the printing and 
publication were criminal acts, and provoked the 
assault. It does not lie in his mouth to ask you 
to punish, by this extraordinary power of privi- 











f 


le^e which is claimed, the individual who com¬ 
mitted the second offense, which he by his first 
criminal act provoked. Is it right Is it just? 

According to the doctrine in the Massachusetts 
<*.ase, these being personal privileges, not belong¬ 
ing collectively to the body, but to the individuals, 
not to be subtracted from or added to by resolu¬ 
tion of the House, there has been no breach of 
the privileges of the Senate, and only a breach 
of the privileges of the Senator, to whom the 
courts of the country lie open, where he, and you, 
and I, and all of us, can resort for justice. That 
narrows the question down, then, to the simple 
fact of the time and place where the act was com¬ 
mitted. I grant that, if the act had been done in 
open session of the Senate, it would have been a 
breach of privilege; but it was done in that 
Chamber, after the Senate had adjourned, when 
strangers, members of this House, officers of this 
body, and others, wei’e there. How long does 
the odor of sanctity remain about the Chamber? 
Can any one tell me? Is it thirty, or thirty-five, 
or forty minutes ? Who is to be the judge ? But 
granting all that, the act comes on the other 
ground that I take—and that, I think, we can 
stand upon—that this House ought not, and has 
not the right, to punish for a technical, legal con¬ 
tempt, where the courts of the country can give 
full and ample redress. 

Sir, this is a subject which can hardly be dis- 


8 


0 027 U9 800 0 


cussed within the limits of an hour. In attempt¬ 
ing to discuss it legally, one can hardly do him¬ 
self justice. I shall not attempt to elaborate it 
further, since I have left but a moment more. 

I have a few words now to say in regard to ths 
resolutions of the Senate in reference to this mat¬ 
ter; and as the Senate is the prosecutor here, I 
shall be guilty of no infringement of the parlia¬ 
mentary law in commenting on their conduct in 
respect to this matter. Sir, when a speech had 
been made in the Senate reflecting upon the char¬ 
acter of an entire people, and an entire State—a 
speech w'hich has oeen condemned as anti-Amer¬ 
ican and unpatriotic, and has called down the 
denunciations of gentlemen from every section 
of the country—when it provoked a member of 
this House to commit an act which, perhaps, in 
strict morals, he ought not to have committed, I 
do think that, when the Senate sent here and 
asked us to punish that member, they might, 
with some propriety, have said to the House in 
their resolution, “We do not approve of the con¬ 
duct of our Senator. While we think our priv¬ 
ileges have been invaded, we do not desire the 
American House of Representatives for one 
minute to suppose, that an American Senate is 
capable of sanctioning such a breach of good 
breeding, propriety, and decorum, as that of 
which the Senator from Massachusetts has been 
I guilty.” 















